Nahmod Law

Where a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers, such a claim may be viable where the plaintiff alleges a seizure, the absence of probable cause, malice (presumed by the absence of probable cause) and favorable termination. See Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022).

The Issues

Suppose, though, that a §1983 plaintiff was arrested and prosecuted on three criminal charges and that there was a favorable termination of those three charges by way of dismissal. However, it turns out that there was probable cause to arrest and prosecute on two of those charges but not the third. Can the § 1983 Fourth Amendment claim go forward on the third charge under the “charge-specific” rule? Or is that claim barred under the “any-crime” rule because of the presence of probable cause for the other two charges?

The Chiaverini Decision

In Chiaverini v. City of Napolelon, 144 S. Ct. — (2024), the Supreme Court, reversing the Sixth Circuit, answered that the § 1983 Fourth Amendment malicious prosecution claim can go forward on the third charge. In adopting the charge-specific rule, it resolved a split in the circuits because the Second, Third and Eleventh Circuits, unlike the Sixth Circuit, had previously adopted the charge-specific rule.

In Chiaverini, the Sixth Circuit ruled, based on its circuit precedent supporting the any-crime rule, that because probable cause existed to support the plaintiff’s detention and prosecution on two of the criminal charges, receiving stolen property and a license violation (both misdemeanors), the allegedly meritless charge for which probable cause did not exist, money laundering (a felony), did not change the nature of the seizure. For this reason, the Sixth Circuit concluded, the plaintiff’s Fourth Amendment malicious prosecution claim based on the money laundering charge could not go forward.

The Supreme Court reversed in an opinion by Justice Kagan. She noted that the parties now agreed on appeal that there was no “flat bar,” contrary to what the Sixth Circuit had wrongfully decided. Instead, the charge-specific rule was the correct one for several reasons. First, it followed from established Fourth Amendment law: an invalid charge can cause a detention either to start or continue, even where a valid charge has also been brought. And second, it also followed from the common law principles of malicious prosecution in 1871 when § 1983 was enacted, as demonstrated by cases and treatises from that period.

The Court then went on to address what the parties currently disagreed on: the appropriate causation test under the charge-specific rule. The plaintiff in Chiaverini argued for a broad causation test under which the warrant that a judge issues where both valid and invalid charges are brought is “irretrievably tainted; so any detention depending on the warrant is the result of the invalid charge.” The United States as amicus curiae argued for a stricter but-for causation test to determine whether the invalid charge would have caused the detention, even apart from the valid charge. The defendants in Chiaverini argued for an even stricter test: whether the judge could have legally authorized the detention, regardless of whether he would have. Ultimately, the Court did not decide on the appropriate causation test, instead remanding to the lower courts.

The Dissents

Justice Thomas, joined by Justice Alito, dissented. They rejected the Court’s decision in Thompson v. Clark which declared that the appropriate analog for a § 1983 Fourth Amendment claim of this kind is malicious prosecution. More specifically, they forthrightly argued that “a malicious prosecution claim may not be brought under the Fourth Amendment.” Justice Gorsuch also dissented, accusing the Court of “doubling down on a new tort of its own invention–what it calls a ‘Fourth Amendment malicious-prosecution’ cause of action.” He suggested that the Fourteenth Amendment could provide the “constitutional hook” for § 1983 claims based on malicious use of process, even though such a procedural due process approach would generate its own set of problems.

Comments

The Court’s decision in Chiaverini is sound with regard to § 1983 statutory interpretation and the “background of tort liability.” As the Court observed, the common law of malicious prosecution in 1871 (when § 1983 was enacted), as set out in the case law and treatises of that period, demonstrated that the charge-specific approach was the correct one.

The Court’s decision is also sound as a matter of policy. Under the any-crime rule a police officer could protect himself or herself from a § 1983 Fourth Amendment malicious prosecution claim simply by adding a relatively minor criminal charge for which there was probable cause to a serious criminal charge for there was no probable cause. This would undermine police officer accountability.

Moreover, in support of the charge-specific rule, one might point out that every § 1983 Fourth Amendment malicious prosecution claim, even one brought in the same case with other § 1983 malicious prosecution claims, raises a separate constitutional violation issue which is ordinarily analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.

Finally, consider the proper causation test, discussed but not resolved by the Court in Chiaverini. In my view, the but-for causation test is the proper test. Thus, under the charge-specific rule, the plaintiff in a § 1983 Fourth Amendment malicious prosecution case involving more than one criminal charge has the burden of pleading and proving that the baseless charge was the cause in fact (and proximate cause) of particular damages, and those damages must be separate and distinct from the damages resulting from the criminal charge or charges based on probable cause. In some situations this may prove to be complicated. On the other hand, there is much § 1983 litigation brought involving different constitutional violations alleged in the same cases: sorting out the damages connected to each of the claims in such situations has not proved to be insurmountable for judges and juries.

Despite the three dissents in Chiaverini, it is fair to say that § 1983 Fourth Amendment malicious prosecution claims are here to stay.